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rents (2). 2. An assise of mort d'ancestor or novel dissessin will lie of tenta as well as of lands (d); if the lord, for the sake of trying the possessory right, will make it his election to suppose himself ousted or disseised thereof. This is now seldom heard of; and all other real actions to recover rents, being in the nature of writs of right, and therefore more dilatory in their progress, are entirely disused, though not formally abolished by law. Of this species however is, 3. The writ de consuetudinibus et servitiis, which lies for the lord against his tenant, who withholds from him the rents and services due by custom, or tenure, for his land (e). This compels a spe cific payment or performance of the rent or service; and there are also others, whereby the lord shall recover the land itself in lieu of the duty withheld. As, 4. The writ of cessavit; which lies by the statutes of Glocester, 6 Edward I. c. 4. and of Westm. 2. 13 Edw. I. c. 21. and 41. when a man who holds lands of a lord by rent or other services, neglects or ceases to perform his services for two years together; or where a religious house hath lands given it, on condition of performing some certain spiritual service, as reading prayers or giving alms, and neglects it; in either of which cases, if the cesser or neglect have continued for two years, the lord or donor and his heirs shall have a writ of cessavit to recover the land itself, eo quod tenens in faciendis servitiis per biennium jam cessavit (ƒ). In like manner, by the civil law, if a tenant who held lands upon payment of rent or services, or "jure emphyteutico," neglected to pay or perform them per totum triennium, he might be ejected from such emphyteutic lands (g) But by the statute of Glocester, the cessavit does not lie for lands let upon
fee-farm rents, unless they have lain fresh and uncultivated for [*233] two years, and there be *not sufficient distress upon the premises;
or unless the tenant hath so enclosed the land, that the lord cannot come upon it to distrain (h). For the law prefers the simple and ordinary remedies, by distress or by the actions just now mentioned, to this extraordinary one of forfeiture for a cessavit: and therefore the same statute of Glocester has provided farther, that upon tender of arrears and damages before judgment, and giving security for the future performance of the services, the process shall be at an end, and the tenant shall retain his land; to which the statute of Westm. 2. conforms, so far as may stand with convenience and reason of law (i). It is easy to observe, that the statute (k) 4 Geo. II. c. 28. (which permits landlords who have a right of reentry for non-payment for rent, to serve an ejectment on their tenants, when half a year's rent is due, and there is no sufficient distress on the premises) is in some measure copied from the ancient writ of cessavit: especially as it may be satisfied and put an end to in a similar manner by tender of the rent and costs within six months after. And the same remedy is, in substance, adopted by statute 11 Geo. II. c. 19. § 16. (3) which enacts that where any tenant at rack-rent shall be one year's rent in arrear, and shall desert the demised premises, leaving the same uncultivated or unoccupied, so that no sufficient distress can be had: two justice of the peace (after notice affixed on the premises for fourteen days withou
(d) F. N. B. 195.
(e) Ibil. 151.
(f) Ibid. 208.
(g) Cod. 4. 66. 2.
(2) See 1 R. S. 747, § 19.
(a) And see by 57 Geo. III. c. 52. which 8.ves similar power, though only half a year's
(h) F. N. B. 209. 2 Inst. 298.
(i) 2 Inst. 401. 460.
(k) See page 206.
rent is in arrear, and although no right ● entry be reserved.
effect) may give the landlord possession thereof, and thence forth the lease shall be void. 5. There is also another very effectual remedy, which takes place when the tenant upon a writ of assise for rent, or on a reple vin, disowns or disclaims his tenure, whereby the lord loses his verdict: in which case the lord may have a writ of right, sur disclaimer, grounded on this denial of tenure; and shall upon proof of the tenure, recover back he land itself so holden, as a punishment to the tenant for such his false disclaimer (). This piece of retaliating justice, whereby the tenant who endeavours to defraud his lord is himself deprived of the estate,
as it evidently proceeds upon feodal principles, "so it is expressly [*234] to be met with in the feodal constitutions (m): "vasallus, qui abnegavit feudum ejusve conditionem, exspoliabitur."
And, as on the one hand the ancient law provided these several remedies to obviate the knavery and punish the ingratitude of the tenant, so on the other hand it was equally careful to redress the oppression of the lord; by furnishing, 1. The writ of ne injuste vexes (n); which is an ancient writ founded on that chapter (o) of magna carta, which prohibits distresses for greater services than are really due to the lord; being itself of the pro hibitory kind, and yet in the nature of a writ of right (p) (4). It lies where the tenant in fee-simple and his ancestors have held of the lord by certain services; and the lord hath ordained seisin of more or greater ser vices, by the inadvertent payment or performance of them by the tenant himself. Here the tenant cannot in an avowry avoid the lord's possessory right, because of the seisin given by his own hands; but is driven to this writ, to devest the lord's possession, and establish the mere right of property, by ascertaining the services, and reducing them to their proper standard. But this writ does not lie for tenant in tail; for he may avoid such seisin of the lord, obtained from the payment of his ancestors, by plea to an avowry in replevin (q). 2. The writ of mesne, de medio; which is also in the nature of a writ of right (r), and lies, when upon a subinfeu dation the mesne, or middle lord (s), suffers his under-tenant, or tenant pa ravail, to be distrained upon by the lord paramount, for the rent due to him from the mesne lord (t). And in such case the tenant shall have judg ment to be acquitted (or indemnified) by the mesne lord; and if he makes default therein, or does not appear originally to the tenant's writ, he shall be forejudged of his mesnalty, and the tenant shall hold immediately of the lord paramount himself (u) (5).
*Il. Thus far of the remedies for subtraction of rents or other [*235] services due by tenure. There are also other services due by ancient custom and prescription only. Such is that of doing suit to another's mill where the persons, resident in a particular place, by usage time out of mind have been accustomed to grind their corn at a certain niill; and afterwards any of them go to another mill, and withdraw their suit (their secta, a sequendo) from the ancient mill. This is not only a damage, but
an injuny, to the owner; because this prescription might have a very rea sonable foundation; viz. upon the erection of such mill by the ancestors of the owner for the convenience of the inhabitants, on condition, that when erected, they should all grind their corn there only. And for this injury the owner shall have a writ de secta ad molendinum (w), commanding the defendant to do his suit at that mill, quam ad illud facere debet, et solet, or shew good cause to the contrary in which action the validity of the prescription may be tried, and if it be found for the owner, he shall recover damages against the defendant (x). In like manner, and for like reasons, the register (y) will inform us, that a man may have a writ of secta ad furnum, secta ad torrale, et ad omnia alia hujusmodi; for suit due to his furnum, his public oven or bakehouse; or to his torrale, his kiln, or malthouse; when a person's ancestors have erected a convenience of that sort for the benefit of the neighbourhood, upon an agreement (proved by immemorial custom) that all the inhabitants should use and resort to it when erected. But besides these special remedies for subtractions, to compel the specific performance of the service due by custom an action on the case will also lie for all of them, to repair the party injured in damages (6) And thus much for the injury of subtraction.
OF DISTURBANCE (1).
THE sixth and last species of real injuries is that of disturbance; which is usually a wrong done to some incorporeal hereditament, by hindering or disquieting the owners in their regular and lawful enjoyment of it (a). I shall consider five sorts of this injury: viz. 1. Disturbance of franchises. 2. Disturbance of common. 3. Disturbance of ways. 4. Disturbance of tenure. 5. Disturbance of patronage (2).
I. Disturbance of franchises happens when a man has the franchise of holding a court-leet, of keeping a fair or market, of free-warren, of taking toll, of seizing waifs or estrays, or (in short) any other species of franchise whatsoever; and he is disturbed or incommoded in the lawful exercise thereof. As if another, by distress, menaces, or persuasions, prevails upon the suitors not to appear at my court; or obstructs the passage to my fair or market; or hunts in my free-warren; or refuses to pay me the accustomed toll; or hinders me from seizing the waif or estray, whereby it escapes or is carried out of my liberty; in every case of this kind, all which it is impossible here to recite or suggest, there is an injury done to the legal owner; his property is damnified; and the profits arising from
(w) F. N. B. 123.
(z) Co. Entr. 461
(6) This is now the only action in use for most of the injuries specified in this chapter; .he ancient appropriate writs having become obsolete. See further, 2 Saund. 113. b.
(1) See in general, Com. Dig. Action upon
(y) fol. 153.
(a) Finch, L. 187.
the Case for a Disturbance, and Care Impedit, D.
(2) The first and last of these divisions are inapplicable to New-York.
such his franchise are diminished. To remedy which, as the 'aw has given no other writ, he is therefore entitled to sue for da- [*237} mages by a special action on the case: or, in case of toll, may take a distress if he pleases (b).
II. The disturbance of common comes next to be considered (3); where any act is done, by which the right of another to his common is incommoded or diminished. This may happen, in the first place, where ono who hath no right of common, puts his cattle into the land; and thereby robs the cattle of the commoners of their respective shares of the pas ture. Or if one, who hath a right of common, puts in cattle which are not commonable, as hogs and goats; which amounts to the same incon▼enience. But the lord of the soil may (by custom or prescription, but not without) put a stranger's cattle into the common (c); and also, by a like prescription for common appurtenant, cattle that are not commonable may be put into the common (d). The lord also of the soil may justify making burrows therein, and putting in rabbits, so as they do not increase to so large a number as totally to destroy the common (e). But in general, in case the beasts of a stranger, or the uncommonable cattle of a commoner, be found upon the land, the lord or any of the commoners may distrain them damage-feasant (ƒ): or the commoner may bring an action on the case to recover damages, provided the injury done be any thing considerable so that he may lay his action with a per quod, or allege that thereby he was deprived of his common. But for a trivial trespass the
commoner has no action but the lord of the soil only, for the entry and trespass committed ( g) (4).
Another disturbance of common is by surcharging it; or putting more cattle therein than the pasture and herbage will sustain, or the party hath a right to do. In this case he that surcharges does an injury to the rest of the owners, by depriving them of their respective portions, or
at least contracting them into a smaller compass. This injury [*238]
(b) Cro. Eliz. 558.
(c) 1 Roll. Abr. 396. (d) Co. Litt. 122.
(3) As to rights of common in general, see ante, 2 book, 32 to 35.
(4) If cattle escape into the common, and are driven out by the owner as soon as he has notice, though the lord may have his action of trespass, yet the commoner cannot bring his action upon the case, because sufficient feeding still remains for him. But if cattle are permitted to depasture the common, whether they belong to a stranger, or are the supernumerary cattle of a commoner, an action lies; and it is not necessary to prove specific injury, for the right of the commoner is injured by such an act, and if permitted, the wrong doer might gain a right by repeated acts of encroachment. 2 Bla. Rep. 1233. 4 T. R. 71. 2 East, 154. 1 Saund. 346. b. And where A., being possessed of a portion of a lammas field over which a right of common existed part of the year, took down the customary Fost and rail fence, containing gaps through which the commoner's cattle might pass, and built a wall with a single doorway, at which they might enter and return, it was held that this was a disturbance of the common right, and an action was maintainable, though
(e) Cro. Eliz. 876. Cro. Jac. 195. Lutw. 108.
the abridgment of the right was inconsidera.
by surcharging can properly speaking only happen, where the common is appendant or appurtenant (h), and of course limitable by law; or where, when in gross, it is expressly limited and certain; for where a man hath common in gross, sans nombre or without stint, he cannot be a surcharger. However, even where a man is said to have common with. out stint, still there must be left sufficient for the lord's own beasts (i); for the law will not suppose that, at the original grant of the common, the lord meant to exclude himself (5).
The usual remedies, for surcharging the common, are either by distraining so many of the beasts as are above the number allowed, or else by an action of trespass, both which may be had by the lord: or lastly, by a special action on the case for damages; in which any commoner may be plaintiff (j). But the ancient and most effectual method of proceeding is by writ54 of admeasurement of pasture. This lies either where a common appurtenant or in gross is certain as to number, or where a man has common appendant or appurtenant to his land, the quantity of which common has never yet been ascertained. In either of these cases, as well the lord, as any of the commoners, is entitled to this writ of admeasurement; which is one of those writs that are called vicontiel (k), being directed to the sheriff (vicecomiti), and not to be returned to any superior court, till finally executed by him. It recites a complaint, that the defendant hath surcharged, superoneravit, the common: and therefore commands the sheriff to admeasure and apportion it; that the defendant may not have more than belongs to him, and that the plaintiff may have his rightful share. And upon this suit all the commoners shall be admeasured, as well those who have not, as those who have surcharged the common; as well the plaintif as the defendant (7). The execution of this writ must be by a [*239] jury of twelve men, who are upon their *oaths to ascertain, un
der the superintendence of the sheriff, what and how many cattle each commoner is entitled to feed. And the rule for this admeasurement is generally understood to be, that the commoner shall not turn more cattle upon the common, than are sufficient to manure and stock the land to which his right of common is annexed; or, as our ancient law expressed it, such cattle only as are levant and couchant upon his tenement (m): which being a thing uncertain before admeasurement, has frequently, though erroneously, occasioned this unmeasured right of common to be called a com. mon without stint or sans nombre (n); a thing which, though possible in law (0), does in fact very rarely exist (6).
(A) See book II. ch. 3.
(i) 1 Roll. Abr. 399.
(j) Freem. 273.
(k) 2 Inst. 369. Finch, L, 314.
(5) The modern doctrine upon this subject As somewhat different, for it is now held, that a prescription for a sole and several pasture, &c. in exclusion of the owner of the soil for the whole year, is good, 2 Lev. 2. Pollexf. 13. 1 Mod. 74. for it does not exclude the lord from all the profits of the soil, as he is entitled to the mines, trees, and quarries. And though a man cannot prescribe to have common eo nomine for the whole year in exclusion of the iord, 1 Lev. 268. 1 Vent. 395, still the lord may, of custom, be restrained to a qualified right of common during a part of the year. Ye v. 129. And it is said the lord may be re
(54) See Hov. n (54) at the end of the Vol. B. [II.